Section 504: What’s New - PowerPoint Presentation

Section 504: What’s New and What’s Next MO-CASESeptember 2017 Betsey Helfrich bhelfrich@mickesotoole.com Sarah Schmanke sarahs@mickesotoole.com

IDEA v. 504

IDEA Individuals with Disabilities Education Act (1975, originally enacted as Education of Handicapped Children Act), codified at 20 U.S.C. § 1400 et seq. Last reauthorized in 2004Provide eligible students with a Free and Appropriate Public Education

Section 504Section 504 of the Rehabilitation Act of 1973 (Sept. 26, 1973), codified at 29 U.S.C. § 701 et seq. First U.S. federal civil rights protection for people with disabilitiesNondiscrimination law

Section 504 Section 504 of the Rehabilitation Act provides, in pertinent part, that “no otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a).

What are the legal risks?

IDEA DESE Child Complaint Due Process Complaint & Appeal in Federal Court Attorneys’ Fees Remedy: Private placement, compensatory education, etc…

Section 504 Internal appeal per policy manual Office for Civil Rights ComplaintState or federal disability discrimination lawsuitMissouri Human Rights Act (revised 2017) New U.S. Supreme Court decision – Fry v. Napoleon (2017)

EXHAUSTION

IDEA’s Exhaustion Requirement The IDEA requires a parent, dissatisfied with an educational decision regarding her child, exhaust state administrative remedies before proceeding to federal court. Section 1415(l) of the IDEA states: Before a party may file a civil action for a violation of the Constitution, Section 504 or the ADA, and seek relief that is also available under the IDEA, the party must first exhaust their administrative remedies under the IDEA. See Bailey v. Avilla, 721 F.3d 588, 592-593 (8th Cir. 2013)

Fry v. Napoleon Community Schools U.S. Supreme Court Case 2017 (137 S.Ct. 743)In Fry , the Court considered the IDEA’s exhaustion requirement and what it means to “seek relief that is also available” under the IDEA and confirmed that exhaustion under the IDEA is required when the gravamen of plaintiff’s suit is the denial of a “free appropriate public education.”

Fry v. Napoleon Community Schools The Court confirmed that some claims for a violation of the Constitution, Section 504 or the ADA must first be exhausted pursuant to the IDEA administrative process prior to filing a civil action.However, it's not necessary to first seek relief under the IDEA when the gravamen of a complaint does not involve FAPE.

Fry v. Napoleon Community Schools The Court offers two hypothetical questions to ask to determine whether exhaustion is necessary:Could the plaintiff have brought essentially the same claim if the alleged conduct had occurred at a public facility that was not a school—say, a public theater or library? C ould an adult at the school (an employee or visitor) have pressed essentially the same grievance? If the answer is yes, that's a clue that the case wouldn't be subject to exhaustion.

J.M. v. Francis Howell Sch. Dist. J.M. v. Francis Howell Sch. Dist., 850 F.3d 944, 951 (8th Cir. 2017)Action against District, claiming unlawful use of isolation and physical restraints in violation of Equal Protection Clause, § 1983, § 1988, ADA, Rehabilitation Act, and MHRA . Court ruled that claims were subject to exhaustion.

Preventing Discrimination Claims

Clarify 504 Procedures Identify compliance coordinator Section 504 requires that school districts appoint a compliance coordinator. 34 CFR 104.7(a). This person is responsible for ensuring compliance with Section 504 for the District and is typically in charge of investigating claims of disability discrimination and harassment. Update and f amiliarize with Board Policies. Establish, update and adopt Section 504 procedures and procedural safeguards. Publish accurate Notice of Non-Discrimination.

Notice of Non-Discrimination Requirements The regulations implementing Title VI, Title IX, Section 504, the Age Discrimination Act, and the Boy Scouts Act contain requirements for recipients to issue notices of non-discrimination. See 34 C.F.R. Sections 100.6(d), 106.9, 104.8, 110.25, and 108.9.The Title II regulation also contains a notice requirement that applies to all entities of state or local government, whether or not they receive federal financial assistance.See 28 C.F.R. Section 35.106.

Notice of Non-Discrimination Requirements These regulations require that recipients notify students, parents and others that they do not discriminate on the basis of race, color, national origin, sex, disability, and age, and, if applicable, that they provide equal access to the Boy Scouts of America and other designated youth groups. U.S. Department of Education

Notice of Non-Discrimination The following sample notice of non-discrimination meets the minimum requirements of the regulations enforced by OCR: The (Name of Recipient) does not discriminate on the basis of race, color, national origin, sex, disability, or age in its programs and activities and provides equal access to the Boy Scouts and other designated youth groups. The following person has been designated to handle inquiries regarding the non-discrimination policies: Name and/or Title Address Telephone No.

Notice of Non-Discrimination For further information regarding notice of non-discrimination, visit: http:// wdcrobcolp01.ed.gov/CFAPPS/OCR/contactus.cfm

Notice of Non-DiscriminationPublish – on website, central office, handbooks. Train – is everyone aware of who compliance officer is and reporting obligations?

Extracurriculars and Field Trips

Section 504 Regs Section 504 – school may not deny a qualified disabled person the opportunity to participate in or benefit from an aid, benefit or service.District “shall provide non-academic and extracurricular services and activities in such a manner as is necessary to afford handicapped students an equal opportunity for participation in such services and activities.” 34 CFR 104.37

OCR: In re Dear Colleague Letter (2013) A District must conduct an individualized inquiry to determine whether reasonable modifications or necessary aids and services would provide a student with a disability with an equal opportunity to participate in an extracurricular activity.Provision of an equal opportunity “does not mean every student with a disability has the right to be on an athletic team, and it does not mean that school districts must create separate or different activities for students with disabilities.” Letter provided example light alongside starter pistol for deaf runner

Criteria for Participation Can have guidelines for eligibility and continued participation.Might need to consider waiver in certain circumstances.Must consider need for reasonable accommodation. One-on-one aide? Meares v. Rim of the World Unified Sch. Dist. , (C.D. Cal. 2016)

Schools do not have to provide accommodations if: Undue Burdenpretty much nonexistent exceptionIt is a fundamental alteration that:changes an essential aspect of the activitygives a student with a disability an unfair advantage - K.L. v. MSHAA (E.D. Mo. 2016) What about safety concerns? - Class v. Towson Univ. (4 th Cir. 2015)

Field Trips And Away Competitions Must provide reasonable accommodation for equal opportunity.May prohibit disabled student from participating if participation presents unacceptable risk to student’s health or safety. “ In all events, the district has the burden of demonstrating that the student should not participate.” Montebello (CA) Unified Sch. Dist. , (OCR 1993 ). Can’t require parent to accompany if similar obligation is not imposed on other parents.

New 504 Guidance

Recent OCR Guidance Guidance in recognizing, redressing, and preventing racial discrimination in special education (Dec. 2016)Dear Colleague Letter and Question and Answer Document (Fact Sheet) about the legal limitations on use of restraint or seclusion (Dec. 2016) OCR and OSERS joint Dear Colleague Letter and question and answer documents related to rights of public charter school students (Dec. 2016)

OCR Resource guide OCR December 2016, Parent and Educator Resource Guide to Section 504 in Public Elementary and Secondary Schoolshttps://www2.ed.gov/about/offices/list/ocr/docs/504-resource-guide-201612.pdf

OCR Resource Guide Additional Protections from Discrimination Example – Bus transportation schedule requires 20 min early departure for students with disabilities who need wheelchair-accessible bus. “In this example, the school, by unnecessarily requiring students with certain mobility disabilities to leave class 20 minutes early every day, would unlawfully limit the opportunities that the students with disabilities have, relative to their non-disabled peers, to participate in or benefit from educational services at the school.” p. 30

OCR Resource Guide Additional Protections from Discrimination (con’t) “In addition, the school’s blanket practice would raise FAPE concerns because the practice applies to all students with certain mobility disabilities without considering each student with a mobility disability’s individual needs… Unless the school makes an individual determination through the FAPE process that a student with a disability requires a shortened school day to receive FAPE, students with disabilities are entitled to an entire school day that is as long as the school day for students without disabilities.” p. 30

Section 504 Best Practices Update policies and procedures Training regarding non-discrimination policies and proceduresCommunication between Sped/504Document!

THE END Betsey Helfrichbhelfrich@mickesotoole.com Sarah Schmanke sarahs@mickesotoole.com Mickes O’Toole, LLC 555 Maryville University Dr., Suite 240 St. Louis, Missouri 63141 314.878.5600 | www.mickesotoole.com